147 Minn. 376 | Minn. | 1920
The appeal is from an order temporarily enjoining a sale of a membership of plaintiff in -the Minneapolis Chamber of Commerce under an execution upon a money judgment against him, entered in the district court of Blue Earth- county -in favor of the appellant.
Plaintiff is a resident of Chicago, Illinois. He holds a membership in the Minneapolis Chamber of Commerce. A firm, composed of plaintiff and one Ernest Tietgens as partners, has for a number of years conducted a business upon the floor of the chamber in virtue of the right and privilege granted by plaintiff’s membership. The firm also had an agent, L. R. Nutting, doing business for it at Mankato. The appellant, the Farmers Co-operative Exchange Company of Good Thunder, Minnesota, has during said time been a Minnesota corporation having its -principal place of business in Blue Earth county, where, at the village of Good Thunder, it -dealt in grains and farm products through its agent or manager, .Emil Rosnow.
On April 26, 1919, there were issued and delivered to the sheriff of Blue Earth county the summons and complaint in an action brought in the district court of Blue Earth county, Minnesota, by this appellant,
We cannot sustain appellant’s contention that respondent, as a defendant in the Blue Earth county case, made a general appearance when his firm filed the bond of $350 to obtain the release of the office furniture from the attachment. It is clear that appellant did not so understand, for it proceeded thereafter to serve the summons on respondent. The bond was a mere substitute for the office furniture (Slosson v. Ferguson, 31 Minn. 448, 18 N. W. 281), and the giving thereof conferred no jurisdiction over the nonresident defendants beyond the value of the property released.
Appellant further maintains that the district court of Hennepin county is without authority to interfere with process issued by the district court of another county. Respondent concedes that the action cannot be prosecuted in Hennepin county, unless the judgment in Blue Earth county is void on the face of the record. Irregularities in the action, which make the judgment voidable merely, can be taken advantage of only in the district court of this state rendering the judgment. No practice could tolerate an attack by a district court of one county in the state upon a judgment rendered in the district court of another county. The reasoning in State v. District Court of Chippewa County, 85 Minn. 283, 88 N. W. 755, seems to be in point. It is also decisive of the right of appellant to have the cause removed, since the sheriff was a mere nominal party.
Was the district court of Blue Earth county without jurisdiction as to the membership of respondent, and does that appear on the face of the record? In the complaint herein it is alleged that on May 8, 1919, appellant obtained a writ of attachment in the Blue Earth county ease directing the sheriff of Hennepin county to attach all the property of
Respondent being a nonresident defendant in the action the jurisdiction was limited to the property lawfully attached and held until the entry of judgment. As to such property, the above allegations of the complaint concede it was duly seized by the court. Of course, no judgment could be entered until after service of summons. Barber v. Morris, 37 Minn. 194, 33 N. W. 559, 5 Am. St. 836. The claim is now made by respondent that since the summons was not served within 60 days after the writ was levied the court lost jurisdiction. G. S. 1913, § 7845, provides that, “at the time of issuing the summons” or at any time thereafter, a plaintiff may have the assistance of the writ, then adds: “The action must be begun as prescribed in § 7707 not later than 60 days after issuance of the writ.” That the action was already begun when the writ issued, within the purview-of section 7707, is so clearly determined by Bond v. Pennsylvania R. Co. 124 Minn. 195, 144 N. W. 942, and McCormick v. Robinson, 139 Minn. 483, 167 N. W. 271, that no further comment is needed. In the last case cited it was said “that the plaintiff must proceed with reasonable diligence to effect service within a reasonable time” after the summons has been delivered to the officer for service. The action in the district court of Blue Earth county was pending from the time the summons was delivered to the sheriff therein, on April 26, 1919, until the service was actually made as stated. If it be assumed that the delay was unreasonable and the order of the court, that the chamber of commerce retain the membership, was improper, we do not think thereby the "court was ousted of jurisdiction. At most the delay and irregularity might afford the defendant
But respondent asserts that membership in the chamber of commerce is not attachable. If that be true the court never acquired jurisdiction to hold this membership for any purpose whatever, and the judgment entered would be absolutely void, save only as to the amount that could be made out of the office furniture or its substitute, the bond mentioned. We are well aware of decisions holding a seat on a stock exchange, a body similar to the chamber of commerce, not subject to sale under a common writ of execution. Pancoast v. Gowen, 93 Pa. 66; Lowenberg v. Greenbaum, 99 Cal. 162, 33 Pac. 794, 21 L.R.A. 399, 37 Am. St. 42; Barclay v. Smith, 107 Ill. 349, 47 Am. Rep. 437, also 10 R. C. L. p. 1209. Nevertheless, we reach the conclusion that such a seat or membership may be attached and appropriated to the payment of the owner.’s debts.
The membership is more than a privilege. It is personal property. It is transferable by the member during his lifetime, and descends after his death to his representative. It may be burdened by restrictions, but it is nevertheless valuable property, the membership in this instance having a market value upwards of $7,000. It may be reached by creditors’ bill or by proceedings supplementary to. execution. Powell v. Waldron, 89 N. Y. 328, 42 Am. Rep. 301; Habenicht v. Lissak, 78 Cal. 351, 20 Pac. 874, 5 L.R.A. 713, 12 Am. St. 63. It is an asset in bankruptcy and passes to the trustee. State v. Chamber of Commerce, 77 Minn, 308, 79 N. W. 1026; O’Dell v. Boyden, 150 Fed. 731, 80 C. C. A. 397, 10 Ann. Cas. 239; In re Gregory, 174 Fed. 629, 98 C. C. A. 383, annotated in 27 L.R.A.(N.S.) 616; Page v. Edmunds, 187 U. S. 596, 23 Sup. Ct. 200, 47 L. ed. 318. It is taxable as personal property. State
With all the foregoing characteristics and attributes of tangible property, no good reason suggests itself why it should not be reached by ordinary process such as attachment and execution. G. S. 1913, § 7930, provides: “All property real and personal * * * may be levied upon and sold on execution.” Nearly all courts that have spoken on the subject are in accord that such a membership may be reached by creditors’ bill or in proceedings supplementary to execution, the court being empowered to compel the judgment debtor, the owner of the membership, to transfer it to a receiver. A sale on execution may accomplish the same .thing. It passes the owner’s title. No rights or equities of the other members of the chamber are affected. The one in whom the title vests takes it subject to the reasonable regulation and restrictions of the chamber. To say that a resident creditor has no way of attaching such membership when owned by a nonresident, but when owned by a resident it may be reached after judgment, would be to discriminate in favor of the nonresident debtor. If courts possess the power to appropriate memberships in stock exchanges or chambers of commerce of this state in satisfaction of the debts of resident owners, the same power should exist as to nonresident owners. In the instant case, we think the attachment with the subsequent service of the summons gave the court jurisdiction to enter a personal judgment against E. W. Wagner valid to the full extent that it may be paid out of his membership levied upon. It was intimated or assumed in State v. Chamber of Commerce, supra, that the title of the owner of such a membership could be divested by execution sale. It is not necessary now to determine whether the court in which the judgment was rendered should have issued special execution, or whether there should be further orders or proceedings in aid of the execution. Those are matters for the court in which the action originated. We hold the record shows jurisdiction acquired by the district court of Blue Earth county of the respondent to the extent of the membership attached, and to enter and enforce a judgment accordingly. The district court of Hennepin county erred when it retained jurisdiction and sought to interfere with the process of the former court.
The order is reversed.